Excerpt from decision below:
“Section 1710, however, addresses VA’s furnishing of hospital care and medical services and does not pertain to reimbursement of the value of emergency medical treatment at a non-VA facility. See 38 U.S.C. § 1710; Malone, supra; see also Fritz v. Nicholson, 20 Vet.App. 507, 509(2006) (“Congress has authorized the Secretary to reimburse veterans for unauthorized emergency medical treatment under two statutory provisions[:] § 1725 and § 1728.”). Furthermore, although section 1710 may be enforced through section 1703 when a VA claimant seeks direct payment of private medical expenses, see Cantu, supra, the Board’s decision does not address section 1703.
The Board’s failure to address relevant regulations renders its statement of reasons or bases inadequate. See Schafrath, supra.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-0107
RYAN B. KANNEGAARD, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent
DAVIS, Chief Judge: U.S. Army veteran Ryan B. Kannegaard appeals through counsel an October 21, 2015, decision of the Board of Veterans’ Appeals (Board) that denied payment or reimbursement of medical expenses incurred at medical facilities in the State of Idaho from July 25, 2013, to September 10, 2013. For the following reasons, the Board’s October 2015 decision will be set aside and the matter remanded for further adjudication.
I. BACKGROUND
Mr. Kannegaard, who served on active duty from 2005 to 2008, was enrolled in VA healthcare and seen for non-service-connected mental health issues at the VA medical center in Spokane, Washington. On July 22, 2013, a VAMC healthcare worker diagnosed him with schizoaffective disorder.
The events relevant to this appeal began on July 25, 2013, when Mr. Kannegaard called law enforcement officials to report that his car had been stolen. When officials arrived, they found the car parked on a football field at the University of Idaho and they reported belligerent and aggressive behavior. Mr. Kannegaard was involuntarily held by the police and brought to Gritman Medical Center. The next day, the Moscow Volunteer Fire Department transported him to St.
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Joseph’s Regional Medical Center in Lewiston, Idaho. He was admitted to St. Joseph’s on an involuntary status with a provisional diagnosis of psychosis. He remained at St. Joseph’s until August 15, 2013, when he was transferred to State Hospital North by county sheriffs under a civil commitment order. Treatment records from this period report his condition as “paranoid,” “delusional,” “hypervigilant,” “explosive,” and “committable.” R. at 1283.
Mr. Kannegaard filed a claim for reimbursement of the medical expenses he incurred between July 26, 2013, and August 15, 2013.1 In support of this claim, he submitted a bill for $54,408.38 from the St. Joseph’s Regional Medical Center and a bill for $648 from the Moscow Volunteer Fire Department. The bill from St. Joseph’s includes notations that the entire $54,408.38 was “pending insurance” and that the “office is holding this account pending your application for medical assistance.” R. at 1225.
In the decision on appeal, the Board denied the claim for reimbursement. The Board
concluded that, under 38 U.S.C. § 1710(h), VA was not required to reimburse Mr. Kannegaard
because he “was under the custody and care of local or state officials and the medical care rendered
to him was their duty under the law.” Record (R.) at 11. The Board also determined that even if
VA were liable for these medical expenses, Mr. Kannegaard did not meet the requirements for
reimubursement under 38 U.S.C. § 1725. Specifically, the Board found that § 1725 did not require
reimbursement because Mr. Kannegaard was not financially liable for the care he received from
St. Joseph’s or the Moscow Volunteer Fire Department, and was not “in an emergent condition” at
the time he received treatment. R. at 12.
II. ANALYSIS
A. Section 1710
Mr. Kannegaard argues that the Board erred in determining that he was barred from
reimbursement under 38 U.S.C. § 1710(h). Entitled “Eligibility for hospital, nursing home, and
domiciliary care,” section 1710 addresses the furnishing of VA hospital care and medical services.
Subsection 1710(h) states that “[n]othing in this section requires the Secretary to furnish care to a
veteran to whom another agency of Federal, State, or local government has a duty under law to
provide care in an institution of such government.” 38 U.S.C. § 1710(h). The Court has
1 In the decision on appeal, the Board stated that the relevant period is between July 25, 2013, and September
10, 2013.
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determined that section 1710 is “[p]urely an announcement of direction and authority” and does
not include “remedial or reimbursement provisions.” Malone v. Gober, 10 Vet.App. 539, 541
(1997). However, a claimant seeking to have VA pay medical expenses directly to private medical
providers may be entitled to enforcement of section 1710 under section 1703(a)(3) when certain
conditions are met. Cantu v. Principi; 18 Vet.App. 92, 100 (2004); see also 38 U.S.C. § 1703(a)(3)
(addressing “hospital care or medical services for the treatment of medical emergencies” in non-
VA facilities)
The Board is required to support its decision with a written statement of reasons or bases
that is understandable by the claimant and facilitates review by this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The statement of reasons or bases
must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober, 14
Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record,
Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation where they are made
“potentially applicable through the assertions and issues raised in the record,” Schafrath v.
Derwinski, 1 Vet.App. 589, 592 (1991).
The Board concluded that, under subsection 1710(h), “VA is unable to pay for or reimburse any medical expenses associated with [Mr. Kannegaard’s] claim in this case as a matter of law.” R. at 11. Section 1710, however, addresses VA’s furnishing of hospital care and medical services and does not pertain to reimbursement of the value of emergency medical treatment at a non-VA facility. See 38 U.S.C. § 1710; Malone, supra; see also Fritz v. Nicholson, 20 Vet.App. 507, 509(2006) (“Congress has authorized the Secretary to reimburse veterans for unauthorized emergency medical treatment under two statutory provisions[:] § 1725 and § 1728.”). Furthermore, although section 1710 may be enforced through section 1703 when a VA claimant seeks direct payment of private medical expenses, see Cantu, supra, the Board’s decision does not address section 1703.
The Board’s failure to address relevant regulations renders its statement of reasons or bases inadequate. See Schafrath, supra.
B. Section 1725
Mr. Kannegaard asserts that the Board erred in determining that, regardless of its analysis under § 1710, he was not entitled to payment or reimbursement of his medical expenses because he did not meet the requirements of 38 U.S.C. § 1725. Generally, section 1725 authorizes VA to
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“reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-VA facility if the veteran is personally liable for the treatment and an active participant in the VA health care system.” Staab v. McDonald, 28 Vet. App. 50, 52-53 (2016), review denied, No. 14-0957, 2016 WL 4009575 (Vet. App. July 22, 2016). A veteran is considered “personally liable” if he or she
(A) is financially liable to the provider of emergency treatment for that treatment;
(B) has no entitlement to care or services under a health-plan contract (determined, in the case of a health-plan contract as defined in subsection (f)(2)(B) or (f)(2)(C),
without regard to any requirement or limitation relating to eligibility for care or
services from any department or agency of the United States);
(C) has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and
(D) is not eligible for reimbursement for medical care or services under section 1728 of this title [for reimbursement of emergency medical treatment costs for service-connected disabilities].
38 U.S.C. § 1725(b)(3).
The Board determined that Mr. Kannegaard did not meet the requirements of section 1725 in part because “the evidence of record does not document that the [v]eteran is personally liable for any payment of medical expenses . . . or that he has paid any amount.” R. at 11. The record, however, includes evidence that suggests Mr. Kannegaard may be financially liable. Mr. Kannegaard submitted a statement to VA noting that he had no other insurance coverage. He also
submitted a bill from St. Joseph’s that notes an account in his name in the amount of $54,408.38 is “pending insurance” and the “office is holding this account pending your application for medical assistance.” R. at 1225. The Board did not address these favorable pieces of evidence or explain why it discounted them. See Thompson, supra.
As an additional basis for concluding section 1725 was not applicable, the Board found
that Mr. Kannegaard was not in “an emergent condition during the period of treatment.” R. at 12.
In support of this finding, the Board explained that Mr. Kannegaard was “taken to the emergency
room . . . not due to an emergent condition but rather because he was being medically held for
observation by law enforcement officials,” that he was not a danger to himself or others, and that
he “was merely confused and thought his car had been stolen.” Id. The record includes evidence
to the contrary. A medical opinion concludes that Mr. Kannegaard’s “level of agitation and
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aggression make him a risk to himself and others” and that the involuntary hold had been placed
on him because he was “a danger to himself and others.” R. at 1225. Medical treatment notes
taken during Mr. Kannegaard’s period of confinement include observations that he was “paranoid,”
“delusional,” “hypervigilant and explosive,” and that he “attempted to harm staff and was placed
in restraints.” R. at 1283. The Board did not address this evidence in its statement of reasons or
bases.
The Board’s failure to address relevant regulations and favorable evidence in an adeqauate
statement of reasons or bases warrants remand. See Tucker v. West, 11 Vet.App. 369, 374 (1998)(remand is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise
inadequate”). Because the claim is being remanded, the Court need not address Mr. Kannegaard’s additional arguments in favor of remand. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”). However, in
pursuing his claim on remand, Mr. Kannegaard will be free to submit additional argument and evidence as to the remanded matter, and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
III. CONCLUSION
On consideration of the foregoing, the Board’s October 21, 2015, decision is SET ASIDE
and the matter REMANDED for further adjudication.
DATED: August 24, 2017
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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